Citation Nr: 21064410 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 16-01 953 DATE: October 20, 2021 ORDER Service connection for back disorder is denied. Service connection for left sciatica is denied. Service connection for left hip disorder is denied. FINDINGS OF FACT 1. A back disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service and is not caused or aggravated by a service-connected disability. 2. Left sciatica is not caused or aggravated by a service-connected disability. 3. A left hip disorder is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disorder have not been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a left sciatica have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for a left hip disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to March 1970. He was the recipient of numerous awards and decorations, to include the Combat Air Crew Insignia. The Veteran passed away in January 2020, and the appellant is his surviving spouse, who was accepted as a substitute claimant for the purpose of processing this appeal to its completion in March 2020. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2011 by a Department of Veterans Affairs (VA) Regional Office. In August 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In November 2018 and May 2021, the Board remanded the case for additional development and it now returns for further appellate review. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a back disorder, to include as secondary to service-connected left ankle arthritis with tendinosis. Prior to his death, the Veteran contended that his back disorder had its onset in service in 1968 while serving in Vietnam. Specifically, he testified that he worked as a port gunner in helicopters flying in combat zones, and experienced numerous instances where he was unable to stabilize himself and hit his back on the fuselage and/or the helicopter door. He, as well as the appellant, reported that he experienced back pain since service. In the alternative, the Veteran claimed that his back disorder was caused or aggravated by his service-connected left ankle arthritis with tendinosis, to include as a result of an altered gait. As an initial matter, the Board finds that the evidence of record reflects that, prior to his death, the Veteran had a current back disorder, diagnosed as degenerative disc disease (DDD), as shown post-service treatment records, to include imaging conducted in December 2009, and April 2019 VA examination. Additionally, his service treatment records (STRs) reflect he was seen for a lumbar strain in September 1968; however, the remainder of his STRs, to include his March 1970 separation examination, are negative for any complaints, treatment, or diagnosis pertaining to a back disorder. In this regard, the Board notes that, while the Veteran also reported a sore back in August 1967, such was in connection with a diagnosis of strep throat and possible sequalae of pre-service mononucleosis or histoplasmosis. Nonetheless, in light of the Veteran's documented combat service, as evidenced by the receipt of the Combat Air Crew Insignia, the Board also accepts his report of being jostled while serving in a helicopter in Vietnam as such is consistent with the nature of such service. 38 U.S.C. § 1154(b). Furthermore, he is service-connected for left ankle arthritis with tendinosis. Thus, the remaining inquiry is whether the Veteran's current back disorder is related to his military service, or his service-connected left ankle disability. In this regard, at a September 2011 VA examination, at which time diagnoses of motor vehicle accident with low back pain in the 1970s, lumbar disc disease with sciatica of the lower extremity from 2009, and lumbar strain, resolved from 1968 were noted, the examiner opined that the Veteran's back disorder was less likely than no incurred in or caused by the claimed in-service injury, event, or illness. As rationale for the opinion, he indicated that medical data supported acute low back pain in 2009 due to lifting a heavy object, and noted that the Veteran had not seen a physician since 1992. The examiner further indicated that the Veteran did not have difficulty with his lower back until 2009, and he was discharged from service in 1972. He also noted that medical data reflected a motor vehicle accident with a back injury in the 1970s, at which time the Veteran declined surgery and got better in two years. The examiner further reported that the Veteran's STRs showed only one appointment for a lumbar strain in 1968 and his separation examination was silent for any back disorder. However, at the Veteran's August 2017 Board hearing, he provided additional information regarding his post-service incidents, which was not considered by the September 2011 VA examiner. Specifically, he reported that, with respect to his motor vehicle accident, he was rear-ended at a toll booth and did not seek treatment. He further indicated that he suffered a whiplash injury, but no injury to his lower back. The Veteran further explained that, at the time of his motor vehicle accident, he was already experiencing back pain from service. Additionally, he indicated that, with respect to the heavy lifting injury in 2009, after picking up a heavy object to place into a moving truck, he felt a pull on his right side in the area of his hip and lower back. He further indicated that, after six months of occasional pain in his leg, he saw a chiropractor who he believed completely cured him. Furthermore, an August 2017 treatment record from Dr. D.R., a private physician, notes the Veteran's report that he strained his back while in service operating a machine gun on a helicopter and his back pain was aggravated by his unbalanced gait due to an ankle injury. The physician provided an impression that the Veteran's history and examination was consistent with a chronic soft tissue injury that was likely partially service related, and noted that there may be biomechanical misalignment due to antalgic gait. An additional August 2017 private treatment record indicates that the Veteran's back disorder had a connection to his military service as it was partially due to firing a machine gun on a helicopter, and wear and tear. However, no rationale for such opinions were provided and, thus, they are afforded no probative weight. Nonetheless, in light of the addition of such foregoing evidence to the record, the Board remanded the case in November 2018 in order to obtain an addendum addressing whether such is related to the Veteran's military service, to include his in-service treatment for back complaints from September 1968 and/or the nature of his military duties to include being jostled while serving in a helicopter during combat operations in Vietnam. In the interim, in March 2019, a private provider, Dr. S.V., noted that the Veteran had ankle and subtalar instability from an injury sustained in the military, and his unstable ankle and pain may have led to movement dysfunction resulting in low back pain. However, as such opinion is couched in speculative terms and does not include a rationale, it is afforded no probative weight. Thereafter, in April 2019, a VA examiner interviewed the Veteran, reviewed the record, and conducted a physical examination, and opined that his back disorder was less likely than not incurred in, caused by, or the result of active military service, to include his report being jostled while serving in a helicopter during combat operations in Vietnam, or proximately due to, caused by, the result of, or aggravated by his left ankle disability. In support of such opinion, he observed that the Veteran denied experiencing back pain in an October 1967 Report of Medical History and his spine was normal upon clinical evaluation at his March 1970 separation examination. The examiner further explained that DDD of the lumbar spine occurs in individuals, who have not been in military service, in association of advancing age, which is not unusual in the Veteran's population. However, as the examiner provided a conclusory rationale for the opinion regarding secondary service connection, and did not consider the Veteran's report of an altered gait, the Board remanded the case in May 2021 in order to obtain an addendum opinion addressing such matter. Later that month, another VA examiner reviewed the record and opined the Veteran's back disorder was less likely than not caused by, related to, or aggravated by his service-connected left ankle arthritis with tendinosis. In this regard, she noted that, upon review of the December 2009 MRI, the Veteran's DDD was more likely, and more consistent with, age-related changes. The examiner further stated that the April 2019 VA examination report reflected that Veteran's gait was coordinated and smooth, therefore, there was no alteration in weight-bearing noted. The Board observes that, in the appellant's representative's September 2021 Written Brief Presentation, he argued that there had not been substantial compliance with the May 2021 remand directives as the May 2021 VA examiner offered a conclusory opinion without a rationale and did not consider the Veteran's reported altered gait. However, the Board finds such argument to be without merit. In this regard, as previously discussed, the May 2021 VA examiner reviewed the entirety of the record and specifically considered whether the Veteran's back disorder was caused or aggravated by his left ankle disability, to include as a result of an altered gait, and relied on evidence in the file, to include the fact that his gait was noted to be coordinated and smooth, without alteration in weight-bearing, as noted by the April 2019 VA examiner. Furthermore, in regard to the appellant's representative's argument that the April 2019 VA examiner did not perform gait testing properly and cited to medical literature in support of such argument, the Board finds that he, as a lay person, does not have the requisite expertise to determine how a medical professional evaluates a patient's gait. Additionally, while such VA examiner did not specifically evaluate the Veteran's gait, he noted that he observed such throughout the examination and cited to VA treatment records that reflect that the Veteran's gait was observed to be normal with good cadence and foot placement without assistive device in March 2010, and coordinated and smooth in December 2013. In this regard, the Board notes that the Court has held that a VA opinion report is adequate if it is based on correct facts and sufficiently informs the Board of the medical expert's judgment on a medical question and the "essential rationale" for the opinion. Monzingo v. Shinseki, 26 Vet. App. 97, 105-7 (2012); Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that VA examiners do not have a reasons or bases requirement). Where the opinion is lacking in detail, "the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination." Acevedo, 25 Vet. App. at 294. Furthermore, there is a presumption that physicians remain up-to-date on medical knowledge and current medical studies. Monzingo, 26 Vet. App. at 106-7. Thus, the Board finds that April 2019 and May 2021 VA examiners' assessment of the Veteran's gait are supported by the evidence of record and, consequently, there has been substantial compliance with the May 2021 remand directives. Moreover, the Board affords great probative weight to the April 2019 and May 2021 VA examiners' opinions as such considered all of the pertinent evidence of record, to include the Veteran's contentions and relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Furthermore, as indicated previously, the Board finds that the April 2019 and May 2021 VA examiners' opinions are supported by the remainder of the evidence record, to include the fact that the Veteran's March 1970 separation examination revealed that his spine was normal upon clinical evaluation, and, while he was noted to have a limp in September 2011 and was prescribed a cane in October 2019, such were due, in part, to his back disorder. Moreover, his gait was observed to be normal with good cadence and foot placement without assistive device in March 2010, normal in April 2010, July 2010, August 2010, September 2010, March 2011, September 2011, October 2011, and November 2019, coordinated and smooth in December 2013, and slow and steady in January 2014 and January 2020. Moreover, as noted previously, as Drs. D.R. and S.V. provided conclusory or speculative opinions without a rationale, they are afforded no probative weight. Id. The Board further finds that the medical articles cited by the appellant's representative in his April 2021 and September 2021 Written Brief Presentations addressing how foot and ankle disorders can alter an individual's gait, which, in turn, can affect the back; the nature of training in the military; and the development of arthritis in veterans are not accompanied by any corresponding clinical evidence specific to the Veteran and do not suggest a generic relationship between his back disorder and his military service, or his service-connected left ankle disability, with a degree of certainty such that, under the facts of this specific case, reflects plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Consequently, such articles are not probative to the instant matter and, thus, are insufficient to establish service connection for the Veteran's back disorder. Wallin v. West, 11 Vet. App. 509 (1998); Sacks v. West, 11 Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996). The Board also considered the Veteran's and his appellant's assertions as to the etiology of his back disorder; however, as lay people, they do not have the requisite training and experience necessary to address such a complex medical matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of such disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, such requires knowledge of the musculoskeletal system and the impact trauma, and an ankle disability, have on the spine. Thus, may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran's and his appellant's opinions as to the etiology of his back disorder is not competent evidence and, consequently, is afforded no probative weight. Therefore, the Board finds that a back disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service and is not caused or aggravated by a service-connected disability. Thus, service connection for such disorder is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the appellant's claim for service connection for a back disorder. As such, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to service connection for left sciatica, claimed as secondary to a back disorder. 3. Entitlement to service connection for a left hip disorder, claimed as secondary to a back disorder. As an initial matter, the Board notes that the evidence does not show, and neither the Veteran nor the appellant contend, that his left sciatica and/or left hip disorder are directly or presumptively related to any aspect of his military service. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to considered "all possible" substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). Rather, the Veteran and appellant allege that such disorders are caused or aggravated by his back disorder. However, in the instant case, as service connection for a back disorder has not been established, the Veteran's claim of service connection for a left hip and left sciatica disorder as secondary to such disorder is not warranted as a matter of law. In this regard, there is no legal basis upon which to award service connection for a disability that is claimed as secondary to a disability that is not service-connected. Therefore, the appellant's claims for service connection for left sciatica and a left hip disorder as secondary to a back disorder must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Spielmann, Jill F. The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.